Variables affecting length of notice: age

We know that there is no precise method to determine the common-law period of reasonable notice when terminating employees. What has evolved and has been the most quoted case to help with this is the infamous Bardal vs. Globe and Mail. This case tells us that reasonable notice must be decided with reference to each specific case, considering the character of employment, length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

This guideline has been applied to the calculation of reasonable notice by our courts through hundreds of cases across Canada over many years. Out of the variables noted in the Bardal case—the factor of an employee’s age—has always been important in the calculation of notice during termination. It is commonsensical that an older employee will have a more challenging time finding alternative employment and therefore weight will most likely always be given to the variable of age. What is often a struggle is the determination of reasonable notice when an employee is approaching retirement, unless there are mandatory retirement programs on the basis of bona fide occupational requirements.

The Supreme Court of Canada commented on the variableness of age with older employees in the case of Law vs. Canada (1999). The Court noted that:

…the increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this Court has often recognized age as a factor in the context of labour force attachment and detachment. For example, … barring specific skills, it is generally known that a person over 45 will have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the later are frequently more recently trained in the more modern skills.

In the 1988 case of Moran vs. Atlantic Co-operative Publishers, a Nova Scotia Judge extended a notice period for an elderly plaintiff that had expected to work past the age of 65 but couldn’t do so because he was terminated. The issue of age was also dealt with in the 2010 case of Peacock vs. Western Securities Ltd. In that case, the employee Peacock was 62 years old at the time of termination. She had been working for Western Securities for approximately 13 years as a payroll and benefits administrator. Peacock was terminated without cause. Justice Hunt-McDonald commented on the age of Peacock and applied Law vs. Canada. He noted that the Supreme Court case applied to her scenario given that she was 62 years old when terminated and that she would have a difficulty finding and maintaining employment. The Court noted that judicial notice must be taken in these circumstances.

The obvious way for an employer to circumvent this variable and avoid this problem would be to limit common-law entitlements within the context of the employment contract. In other words, to specifically define the termination notice period, so long as that contract meets the minimum requirements of the Employment Standards Act and other applicable laws. If contracts do not impose a mandatory termination clause then age may become a key factor of common-law assessments of how much notice an employee will receive if he or she is of older age.

One must remember that the primary purpose of reasonable notice is to permit the dismissed employee an opportunity to find new employment. Because of this, courts will almost always look at the issue of age in the context of the Bardal variable of the availability of similar employment.

If that employee is close to or at retirement age, then the probability of his/her re-hiring is very slim. When we look at remuneration, job function and the relevant considerations of availability of similar employment(beyond the availability of positions in the type of industry that plaintiff worked in), those opportunities may simply not exist. Employers must be cognizant of the fact that the primary purpose of reasonable notice is to facilitate the finding of new and further employment by the employee. Oftentimes with older employees, employers must simply accept the responsibility of a lengthy notice period—and pay out.

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Matt Lalande is a Hamilton lawyer and founder of Lalande & Company Lawyers. Lalande & Company is a Hamilton law firm that specializes in representing victims who have suffered life changing injuries, claimants denied long term disability, families of wrongful death victims and employment law litigation. Read more

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